The Honourable Andromache Karakatsanis, a judge of
the Superior Court of Justice of Ontario, is appointed to the
Ontario Court of Appeal to replace Madam Justice Susan E.
Lang, who elected to become a supernumerary judge as of
January 6, 2010.

The 2009-2010 Annual OBA Gala Awards Dinner will be
held on Thursday, June 17th at the Park Hyatt Hotel in Toronto.
The President’s Award, the Award for Distinguished
Service and the Linda Adlam Manning Award will all be
presented. Ontario Attorney General Chris Bentley will be in
attendance to present the Mundell Medal for legal writing
on behalf of the Ministry of the Attorney General.

Madam Justice Karakatsanis received a Bachelor of Laws
(LLB) from Osgoode Hall Law School in 1980 and was admitted to the Ontario Bar in 1982. After completing her
clerkship with the Chief Justice of Ontario, she practised in
Toronto until her appointment in 1987 as Vice-Chair of the
Liquor Licence Board of Ontario. The following year, she was
appointed Chair and Chief Executive Officer until her appointment in 1995 as Assistant Deputy Attorney General and
Secretary of the Ontario Native Affairs Secretariat. In 1997,
she was named Deputy Attorney General for the province of
Ontario and, in 2000, she became Secretary of the Cabinet
and Clerk of the Executive Council of the Government of
Ontario. She served in that capacity until her appointment to
the Superior Court of Justice on November 21, 2002.
APPOINTMENTS

Joining the Justices of the Peace Appointments Advisory
Committee is Clint Calder.

Appointed to the board of the Ontario Health Quality Council
is Gilbert Sharpe.

Susan Manwaring is the winner of the 2010 AMS/John
Hodgson Award for excellence in Charity and Not-For-Profit
law. The award presentation will take place on June 8th,
2010, at the OBA Conference Centre

On June 8th, 2010, Maureen Kenny will be presented with
the OBA Ron Ellis Award, recognizing exceptional contributions and achievements in the field of workers’ compensation
law.
The OBA Award of Excellence in Alternative Dispute
Resolution will be presented to the Honourable Mr. Justice
Robert Beaudoin.

Bonnie Anne Tough has been announced as the winner of
the 2010 OBA Award for Excellence in Civil Litigation. The
awards presentation will take place this fall.

Women in the
Profession: Fostering
an Inclusive Culture
President Carole J. Brown

I was recently invited to speak at the all-day Law Society of
Upper Canada’s Women Lawyers’ Symposium, Fostering and
Celebrating Success - A Forum to Equip, Inspire and Support
Women Lawyers in Private Practice, held in Ottawa as part of
the LSUC’s Women Lawyers Leadership Initiative, sponsored
by the LSUC and the County of Carleton Law Association. I
spoke on a panel which comprised senior women lawyers
in private practice on the topic Different Paths to Private
Practice Success, which addressed the myriad options available to women in private practice. This caused me to reflect
on my personal experience in the profession over the past
25 years.
I graduated from law school in 1982, at a time when only
30 percent of the student population was female, and when
only about 10 percent of women lawyers remained in private practice after 10 years. Today, while slightly more than
50 percent of law school graduates are women, the rate of
women over men leaving private practice within the first 10
years is three to one. I was the first woman partner in my law
firm. Statistics indicate that, today, the number of women in
equity partnerships is approximately 16 to 18 percent across
Canada. Thus, the general female population remains underrepresented in private practice.

The 1993 Canadian Bar Association Task Force report
Touchtones for Change, Equity, Diversity and Accountability,
authored by the Honourable Bertha Wilson, documented the
barriers to entry and after entry of women into the practice
of law. There has been much focus on the issue since that
time. According to a survey conducted by the CBA, the top
barriers are systemic or institutional, and include family/
parental commitments and obligations which continue to be
borne principally by women. Change will ultimately require
organizational and cultural shifts within law firms and the
society-at-large.

4

Today, many law firms have increasingly developed initiatives to foster an inclusive culture in the legal profession.
These include parental leave policies, flex-time policies, maternity leave buddy systems to ensure that women remain in
the law firm loop, mentorship of women associates by senior
women partners, and business development and leadership
training programs.

The number of women in our profession in leadership roles
today has increased. One simply has to look at the number
of women on the bench, and in the position of Chief Justice
at all levels of Court across our country. In the CBA, seven of
the 13 Provincial and Territorial Branch Presidents this year
are women. In Ontario, a woman is serving as President in
each of four province-wide legal associations: the Advocates’
Society, Canadian Defence Lawyers Association, Ontario
Trial Lawyers Association and the Ontario Bar Association.
This is a first in the history of our Associations. Interestingly,
NASA’s April shuttle launch also saw a historical first: four
women astronauts on board. We have indeed come a long
way, and there is much yet to come!

As I participated on my panel at the Women Lawyers
Symposium and looked out at the 125 young women in the audience; as I look out upon our OBA Council meetings and the
Council members in attendance, I realize that a sea-change is
underway and that I am looking out on many women lawyers
who will be the future leaders of our profession.
It is important that we take part in ensuring that this
sea-change continues by providing mentorship, networking
opportunities, business and professional development and
leadership opportunities to young women professionals entering the practice of law, to ensure that young women are
given the opportunities and skills necessary to remain and
advance in the practice and to have successful and fulfilling
professionals lives. It is important that the profession generally, men and women alike, work together to ensure that systemic and institutional barriers to professional success are
removed. The general public and our system of justice will be
better served as a result.
From left to right:

ere’s a summary of all appeals and all leaves to appeal (ones granted – so you know what areas of law the S.C.C.
will soon be dealing with). For leaves I’ve specifically included both the date the S.C.C. granted leave and the
date of the C.A. judgment below, in case you want to track and check out the C.A. judgment.
This summary covers February 16 to April 9, 2010.
If you’d like previous reports so you’re right-upto-date, let me know,
and I’ll email them to you:
emeehan@langmichener.ca.

APPEAL JUDGMENTS

for particular offences; rather, it can substitute for actual knowledge whenever knowledge is a component of
the mens rea
while recklessness involves knowledge of a danger or
risk and persistence in a course of conduct which creates
a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the
need for some inquiry declines to make the inquiry because he does not wish to know the truth, he would prefer
to remain ignorant. (emphasis by S.C.C.).

Canadian criminal law does not distinguish between the
principal offender and parties to an offence in determining criminal liability; section 21(1) of the Criminal Code
makes perpetrators, aiders, and abettors equally liable
the actus reus of aiding or abetting is doing (or, in some
circumstances, omitting to do) something that assists or
encourages the perpetrator to commit the offence; while
it is common to speak of aiding and abetting together,
the two concepts are distinct, and liability can flow from
either one
doing, or omitting to do, something that resulted in assisting another in committing a crime is not sufficient to
attract criminal liability
the aider or abettor must have the requisite mens rea;
specifically, the person must have rendered the assistance for the purpose of aiding the principal offender to
commit the crime (emphasis by S.C.C.)
wilful blindness, correctly delineated, is distinct from
recklessness and involves no departure from the subjective inquiry into the accused’s state of mind which must
be undertaken to establish an aider or abettor’s knowledge
wilful blindness does not define the mens rea required

the fact that a witness has an interest in the outcome of
the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when
assessing the credibility of the witness’ testimony
regard should be given to all relevant factors in assessing credibility
the common sense proposition that a witness’ interest
in the proceedings may have an impact on credibility
also applies to an accused person who testifies in his
or her defence
any assumption that an accused will lie to secure his
or her acquittal flies in the face of the presumption of
innocence, as an innocent person, presumably, need
only tell the truth to achieve this outcome (emphasis
by S.C.C.).

The S.C.C. held:
• where state misconduct relates to the offence or the
offender, the sentencing judge may properly take relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1)
• state misconduct which does not amount to a Charter
breach but which impacts the offender may also be a
relevant factor in crafting a fit sentence
• where state misconduct does not relate to the offence
or the offender, however, the accused must seek his or
her remedy in another forum
• a sentence reduction outside statutory limits does not
generally constitute an “appropriate” remedy within
the meaning of s. 24(1)
• the possibility is not foreclosed that in some exceptional cases, a sentence reduction outside statutory
limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents

CRIMINAL LAW: CHILD PORN; SEARCH WARRANTS

R. v. Morelli (Sask. C.A., May 15, 2008) (32741) March 19, 2010
On the particular facts of this case, the S.C.C. held there was
“no reasonable and probable grounds for the search and seizure of the … computer”, and “In the absence of this illegally
obtained evidence, the [accused] could not reasonably have
been convicted”.

If a lawyer asks to withdraw because of non-payment of
fees, courts can refuse, by considering the following nonexhaustive list of factors:
• is it feasible for the accused to represent themselves
• other means of obtaining representation
• impact on the accused from delay in proceedings, particularly if the accused is in custody
• conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other
means of representation, or if counsel sought leave of
the court to withdraw at the earliest possible time
• impact on the Crown and any co-accused
• impact on complainants, witnesses and jurors
• fairness to defence counsel, including consideration of
the expected length and complexity of the proceedings
• history of the proceedings, e.g. if the accused has
changed lawyers repeatedly

Briefly Speaking • En Bref | June 2010

•
•

t he Act and Regulations require that the environmental
assessment track be determined according to the
project as proposed
it is generally not open to a federal authority to change
that level.

During a strike at a mine, the mine owner decided to continue
operating the mine with replacement workers. The strike
degenerated into violence, there were attacks on private security guards who were unable to control the situation, and
the mine owner turned to Pinkertons for security services
who had at one point 52 guards on site. Mr. Warren evaded
security, entered the mine, and while underground, planted
an explosive device which killed nine miners. Mr. O’Neill was
among the first on the scene and discovered dismembered
bodies, including a close friend. The S.C.C. held:
• the security firm and government owed a duty of care,
but had not breached that duty
• the trial judge’s findings of liability against the union
cannot be sustained
• the claims of Mr. O’Neil should have been dismissed
• Pinkerton’s and the government did owe a duty of care
to the murdered miners to take reasonable steps to prevent Mr. Warren’s intentional wrongful act, but did not
breach that duty.
TORTS 101 (AGAIN): DUTY OF CARE; NEGLIGENCE;
DOCTRINE OF PARENS PATRIAE; VICARIOUS LIABILITY;
FIDUCIARY DUTIES

The S.C.C. held (in summary) as follows:
• the first step under the Anns/Kamloops test is to ask
whether the relationship discloses sufficient foreseeability and proximity to establish a prima facie duty of
care; if so, the analysis moves to the second step, whether there are residual policy considerations, transcending the relationship between the parties, that negate the
existence of such a duty
• proximity is about whether the relationship is sufficiently close and direct to give rise to a legal duty of
care, considering such factors as physical closeness, expectations, representations, reliance and the property
or other interests involved
• whether sufficient proximity exists on the facts of this
case turns mainly on the role of the Province in relation
to this orphanage
• the funding relationship between the Province and the
orphanage in this case does not support the existence of
sufficient proximity
• the parens patriae power of the courts is conceived of as
a protective jurisdiction which confers the power to act,
and is commonly exercised by a superior court on a caseby-case basis as a matter of judicial discretion; it is not
generally thought of as a power of the executive branch
of government

7

Supreme Court of Canada Update
•

legislative authority is not enough to impose vicarious liability.

LEAVES TO APPEAL GRANTED
ABORIGINAL LAW: MÉTIS

Is the Alberta Métis Settlements Act unconstitutional by prohibiting individuals with Indian status obtaining Métis settlement membership.
Her Majesty the Queen in Right of Alberta (Minister of Aboriginal
Affairs and Northern Development) and the Registrar, Métis
Settlements Land Registry v. Barbara Cunningham, et al. (Alta.
C.A., June 26, 2009) (33340) March 11, 2010
BANKING: FRAUDULENT TRANSACTIONS

As between two innocent parties to a series of fraudulent
transactions, who is entitled to funds recovered.

Members of the Toronto Police Force were charged in January
2004 with a series of offences, including attempt to obstruct
justice. On consent of the parties, the suggested target trial
date was January 2008. By the end of December 2007, it became clear the pre-trial motions would not be completed in
time to start the trial on that date, and the trial was rescheduled. Is this a constitutionally impermissible delay.

When can a trade-mark be expunged on the ground it is
confusing, as to date of registration.

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June 2010 | Briefly Speaking • En Bref

spotlight on sections

Taxation Law
Martin Sorensen

T

he first Canadian income tax legislation, the Income War Tax Act, was enacted in 1917 as
a temporary measure to raise funds for Canada’s participation in the First World War. The whole
Act comprised 11 pages and 24 sections. Nearly a century later, this temporary tax lives on in the
substantially larger form of the Income Tax Act (Canada) and has been supplemented by a host of new tax
measures (including sales, capital, payroll and property taxes) at virtually every level of government.
Today, it is safe to say that tax is one of the most complex and
fast-changing areas of Canadian law. To keep pace, the OBA
Taxation Law Section has been busy trying to make the area
a little easier to understand and apply, both for specialists
and non-specialists. While we have certainly not covered everything, here is a brief summary of what we have been doing
over the past 12 months.
Tax programs

The Section held a full range of programs on various tax-related topics, such as:
June 3, 2009
Year-End Address by the Honourable Mr. Justice Marshall
Rothstein, including valuable perspectives from an eminent
and respected tax jurist.

September 10, 2009
While You Were Away: Summer 2009 Developments, including
presentations on new U.S. reporting requirements and tax
developments involving Canadian charities.

November 5, 2009
Senior Practitioners’ Panel on the Taxation of Trusts, including
a panel of experienced tax practitioners dealing with important new tax jurisprudence.
December 3, 2009
A Holiday Potpourri, including a discussion of upcoming tax
avoidance cases, international tax planning and recent pronouncements of the Canada Revenue Agency.

February 25, 2010
Mid-Winter Update, including a discussion of recent cases, the
activities of the Joint CBA-CICA Committee on Taxation and
the “LGT Scandal”.
April 21, 2010
Budget Round-Up, including a discussion of recent important
proposals from the 2010 Federal Budget and a primer on the
coming GST/HST changes.
Special thanks to all the presenters, as well as Robert Kepes, Paul
Stepak and Tricia Thompson of the Programming Committee
for their hard work in putting the programs together.
Briefly Speaking • En Bref | June 2010

As for future programs, don’t miss our 2010 year-end program scheduled for June 10, 2010, featuring Justice Robert
Hogan of the Tax Court of Canada. It is sure to be another
great event.
Government Relations

We made several submissions on recent government initiatives, including a submission in April 2009 to the Ontario
Minister of Finance regarding the continued use of retroactive tax legislation. Also in 2009, the Section participated
in a submission regarding the impact of the proposed new
Ontario Harmonized Sales Tax on access to justice and to the
profession. Many thanks to Timothy Fitzsimmons, Robert
Kepes, Robert Kreklewetz and James Murdoch for their leadership and work on these important issues.
Tax Newsletter

Over the last 12 months we have published four issues of our
Tax Newsletter, including 22 articles on topics ranging from
the surrogatum principle to the impact of the new Canada-US
Tax Treaty on “hybrid” entities. Thanks to the hard work of
our numerous contributors and newsletter editors (including
Sabina Mexis, Mark Barbour, David Chodikoff, Milan Legris
and Janice Vohrah) these articles continue to reflect some of
the most insightful and timely tax commentary available.
The Next 12 Months

Here is a bold prediction for the next 12 months. The temporary tax rules enacted nearly a century ago will not be repealed. But there will be new legislation, new proposals, new
administrative pronouncements and new case law. All will
require further study, analysis and attention. The Taxation
Law Section is committed to staying on top of these new developments and helping the OBA membership deal with them.
Martin Sorensen is a Partner at Bennett Jones LLP
and is the chair of the OBA’s Taxation Law Section.

9

LSUC Update

Law Society’s Retention of
Women Initiatives
Continue to Roll Out
Laurie Pawlitza

T

wo years ago, Convocation approved initiatives designed to empower women to take charge of their careers
and to help them maintain the viability of their small firms.

Together with my co-chair, Tom Conway, we continue to
roll out the recommendations of the Law Society’s Retention
of Women in Private Practice Working Group.
Implementation of the working group’s nine recommendations kicked off in November 2008, with the launch of the
Justicia Project. To date, 57 medium- and large-sized law
firms have committed to implement the goals of Justicia by
monitoring firm gender demographics, developing parental leave and flexible work guides, creating networking and
business development opportunities, and providing concrete
opportunities for mentoring and developing leadership skills
for women.
Implementing Justicia’s goals has been a collaborative effort, with both benchers and private practitioners leading
the implementation. As firms of different sizes have different
concerns, participating firms have been divided into three
groups. Together with Kirby Chown, I lead the over 100 lawyer firm group. Linda Rothstein and Megan Shortreed lead
the 25-100 lawyer group and my co-chair, Tom Conway and
Heather Williams, both of Ottawa, lead the out of GTA group.
The participating firms meet regularly to work through
the issues, exchange ideas and establish guidelines to move
forward. The firms then implement the goals in a way that
fits within their own firm structure.

In addition to creating a template for gender data collection and a guide for parental leave, participating firms have
also developed checklists for “ramping down” to parental
leave and “ramping up” after the leave.
Justicia firms are now working on the guide for reduced
hour arrangements and on the business case for the viability
of such arrangements.

10

The work of Justicia will also be enhanced by the annual results the Law Society now receives from the Change of Status
Survey, a survey conducted with lawyers who have moved
from one “status category” of practice to another. The results
of the 2009 study will be released this spring and will give us
considerable information about what influences lawyers to
change their work environment.

In March 2009, the Law Society also launched the Parental
Leave Assistance Program (PLAP) to assist lawyers in small
firms and sole practices. PLAP helps cover expenses associated with maintaining a practice during a lawyer’s parental
or adoption leave by providing a monetary benefit for up to
12 weeks. To qualify, male or female lawyers must be in a
firm of five or fewer and have no access to other benefits. The
program has been a resounding success - to date, 57 applications have been approved.
In May 2009, the Lawyers’ Contract Registry was created. Its purpose was to help lawyers maintain their practice
during a leave of absence. This free resource is designed to
provide access to short-term assistance by allowing practitioners to hire a contract lawyer while they are away on vacation or leave, busy with a trial, or require assistance with
large files.
The most recent initiative is the Women’s Online Resource
Centre (WORC), which will be up and running this summer.
WORC is designed to give busy female practitioners professional and practical information, including practice
management tips, and information on mentoring and on
Justicia policies.

The first annual Women’s Symposium was held on
February 5, 2010 in Ottawa. Its purpose was to foster and
support the success of women in practice. Over 145 participants attended, and our keynote speaker was the Honourable
Justice Louise Charron.
My co-chair, Tom Conway and I are delighted with the
progress of the Retention of Women’s recommendations to
date. More information is available at www.lsuc.on.ca or
you can contact the Resource Centre at 1-800-668-7380, ext.
3315, or 416-947-3315.
We look forward to hearing from you.

Laurie Pawlitza, Co-Chair of the Retention of Women
in Private Practice Working Group.

Pension Reform and Legal Aid
in the Spotlight
Finance Committee Counts on Pension Reform
Advice from OBA
Pension reform has become an important issue in recent years and has caught the attention of the Legislative
Assembly of Ontario and the provincial government. The
Pension Benefits Amendment Act, 2010 will, if passed, deliver
some important changes to the way pensions are handled and
managed in Ontario. To ensure that the legislation addresses
current problems and accomplishes its objectives, the OBA’s
Pensions and Benefits Section prepared a detailed submission on the Bill and delivered it to the Legislative Committee
on Finance and Economic Affairs on Thursday, April 1st.
Representing the OBA were Mitch Frazer, Andrea Boctor
and James Pierlot. They addressed three main issues:
•
•
•

Trust law and pension asset transfers
Surpluses upon termination of a plan

Multi-employer pension plans and partial windups.

As of April 27th, the bill has been reported back to the
House and ordered for Third Reading.

To read the full OBA Submission or Committee Hansard,
please go to www.oba.org/submissions

Current Working Groups:
The OBA has formed a number of working groups to respond to the following issues:
• Administrative Law: Administrative Justice for People
with Capacity Issues
• LawPro Maternity Leave
• Business Law subcommittees
• FSCO Priorities
• Joint & Several Liability (Law Commission of Ontario
Consultation)
• Creditors Relief Act
• Mandatory Mediation
Further information: Louise Harris at lharris@oba.org

OBA Submission on Bill 236, Pension
Benefits Amendments Act
To view any of the above submissions,
please go to www.oba.org/submissions

OBA Town Hall Meeting on Legal Aid Ontario

“OBA Members Mitch Frazer, James Pierlot and Andrea Boctor (Left to Right)
deliver submission on Bill 236, The Pension Benefits Amendment Act, 2010 to the
Standing Committee on Finance and Economic Affairs.”

12

On May 5th, the OBA held a Town Hall Meeting on the
transformations currently underway at Legal Aid Ontario.
The meeting invited members of the profession to hear directly from the Legal Aid Ontario’s VP of Policy and External
Relations David McKillop. To ensure maximum participation
of OBA members, the meeting was available as a live interactive webcast.

June 2010 | Briefly Speaking • En Bref

advocacy in action
Members were able to raise a number of serious issues
with Mr. McKillop throughout the meeting. Topics covered
included changes to tariff rates, regional office relocations and
alignment within the broader context of the justice system.
Members who couldn’t attend can view the video of the
meeting on the OBA website (www.oba.org).

DAY 2011
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changes underway at LAO during the OBA Town Hall Meeting on Legal Aid Ontario.”

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Briefly Speaking • En Bref | June 2010

13

Queenâ&#x20AC;&#x2122;s Park update

Meet your colleagues...

The Lawyers of
the Legislature

O

f the 107 MPPs currently sitting in the 39 th Parliament of Ontario, only 17 of those members are
lawyers, easily dispelling the myth that Parliament is dominated by the legal profession. By party
they are 12 Liberals, three Progressive Conservatives and two New Democrats.

Liberal Caucus

14

Dalton McGuinty

Chris Bentley

David Zimmer

Premier
MPP Ottawa South

Attorney General
Minister of Aboriginal Affairs
MPP London West

Parliamentary Assistant to the
Attorney General
MPP Willowdale

Greg Sorbara

Bob Chiarelli

John Gerretsen

MPP Vaughan

MPP Ottawa West-Nepean

Minister of the Environment
MPP Kingston and the Islands

June 2010 | Briefly Speaking â&#x20AC;˘ En Bref

Update Queen’s Park

Laurel Broten

Margarett Best

Monique Smith

Minister of Children and Youth Services
Minister Responsible for Women’s Issues
MPP Etobicoke-Lakeshore

Minister of Health Promotion
MPP Scarborough-Guildwood

Minister of Intergovernmental Affairs
MPP Nipissing

Lorenzo Berardinetti

Yasir Naqvi

Madeleine Meilleur

Parliamentary Assistant to the Minister of
Labour
MPP Scarborough Southwest

Parliamentary Assistant to the
Minister of Revenue
MPP Ottawa Centre

Minister of Community and Social Services
Minister Responsible for Francophone Affairs
MPP Ottawa-Vanier

Progressive Conservative Caucus

Gerry Martiniuk

Christine Elliott

Norm W. Sterling

MPP Cambridge

MPP Whitby-Oshawa

MPP Carleton – Mississippi Mills

New Democratic Caucus

Howard Hampton

Peter Kormos

MPP Kenora-Rainy River

MPP Welland

Briefly Speaking • En Bref | June 2010

15

Behind the bench

Behind the bench
Introducing you to Ontario’s Judiciary
Justice Todd Archibald
Susannah B. Roth
One thing becomes clear soon
after meeting Mr. Justice Todd
Archibald: he truly relishes the
challenges of being a Superior
Court judge. What he enjoys most,
he says, is wrestling with the complex legal issues that come before
him, and threading the facts of each
case through these issues, as well
as helping people understand the
law and work through their legal
troubles. Clearly he enjoys the versatility that is expected of him. “You
have to be on your intellectual toes
the whole time” he says.

Justice Archibald brings a varied background to the bench.
He was called to the bar in 1979, received his LL.M. in 1986
and was certified as a Specialist in Environmental Law by the
Law Society of Upper Canada in 1997. As an Assistant Crown
Attorney and then a Senior Assistant Crown Attorney for
nine years, he spent most days in court. Although he wanted
to be a criminal defense lawyer, having grown up in the 60s
idolizing Perry Mason, he says that working for the Crown is
invaluable to anyone interested in criminal law or wanting to
become a proficient courtroom advocate.
In 1989, he moved to the City of Toronto as a Senior
Solicitor for the Legal Department handling civil files, ranging from personal injury and malicious prosecution claims to
labour arbitrations and environmental issues. This led him to
private practice with Gardiner Roberts LLP in 1990, practising environmental and criminal law. Later moving to (now)
Borden Ladner Gervais LLP, he was a partner for eight years
with a varied practice including commercial and civil litigation, criminal defense and environmental law and chaired
the Regulatory and Criminal Law Group.
An OBA member for many years, Archibald was a Council
member and also sat on the Continuing Legal Education committee and the Editorial Board of Briefly Speaking, as well as
chairing numerous civil litigation and environmental law
conferences and seminars.

He has been an Adjunct Professor at Osgoode Hall Law
School since 2000, teaching White Collar Crimes and
Regulatory Offences as part of the Criminal LL.M. program
and Advanced Trial Advocacy with Kenneth E. Jull as part
of the Civil LL.M. program, and last year received an award
for teaching excellence. He has channeled his considerable
16

academic interests into several texts; primarily the Annual
Civil Litigation Review, which he started and continues with
his co-editor Justice Randall Scott Echlin, and Regulatory and
Corporate Liability From Due Diligence to Risk Management,
which he co-authors with Kenneth E. Jull and Kent W. Roach;
additionally he co-authors the annual Ontario Superior Court
Practice.

To keep himself challenged, Archibald is an avid tennis
player and a “mediocre” golfer. He also enjoys escorting his
twin 14-year old daughters to various sporting events, including ice and field hockey; visits with his eldest daughter,
currently studying at The University of Western Ontario and
deciding between medicine and law (no comment on which
her father prefers); and spending time with his wife, to whom
he has been happily married for over 20 years.
Susannah B. Roth, O’Sullivan Estate Lawyers

Justice Gertrude Speigel
Alastair Clarke
During World War II,
Justice Speigel lost numerous family members
to the gas chambers at
Auschwitz. Her mother, a
Holocaust survivor, weaned
Justice Speigel on stories of
courage and self-sacrifice.
In one story, her mother
recounted the exceptional
generosity of a kind German
guard and how she, in turn,
attempted to return the
kindness despite the circumstances. From this, Justice Speigel passionately describes the
importance of judging people based on their individual actions,
not based on their associations.

Justice Speigel’s focus on individuals is apparent in how she
conducts her courtroom. She has earned a reputation for spending as much time as needed to hash out the issues presented.
“I remember once we were at it until 7am.” Even as a veteran
judge, she continues, if necessary, to conduct pre-trials until after midnight. “It’s all about momentum. If the parties are making progress, the hour is not important.”
Tucked in the side drawer of her desk, Justice Speigel saves
thank-you notes from litigants who have passed through her
courtroom. One card holds special meaning for her: a note from
a former car dealership owner and his wife, who left her courtroom without their house, but thanked her for giving them suffiJune 2010 | Briefly Speaking • En Bref

behind the bench
cient time and attention that they walked out with their dignity
intact. Justice Speigel’s goal is to ensure the integrity of the legal process and to make sure litigants understand that process
even if they may not be happy with the result.

Even as a mother of two young children, Justice Speigel continued to devote herself to the administration of justice. If her
pre-trials continued into the evening, her kids “could always
call. I made sure they always had my number.” At age seven,
Justice Speigel’s daughter spent one day crouched under the
desk during a matrimonial matter. When suddenly, after a few
hours, the child appeared from under the desk, the husband
asked the child’s opinion of the case. “You married her! Now you
have to deal with her!” It seems Justice Speigel’s daughter took
an interest in the law: she is now a lawyer practising in New
York City. Conversely, her son eschewed the law, but spends his
time protecting our rights and security.

Outside the courts, Justice Speigel and her husband, past
OBA President Jonathan Speigel, love to travel. Through the
OBA’s annual Foreign Conference, they have met with lawyers and judges from many countries including, among others,
South Africa, Turkey, Tunisia, Bhutan, and Burma (Myanmar).
The trips are an excellent way to get to know foreign judicial
systems as well as to bond with other members of the Ontario
Bar. “We need to remember how lucky we are here in Canada.
When someone complains to me that the system is not fair, I
ask them, ‘where on earth is there a better system?’” As a world
traveller and a fixture in the court system for more than 30
years, Justice Speigel knows what she is talking about.
Alastair practises immigration law and poverty law at York Community
Legal Services

Justice of the Peace
Mary Ross Hendriks
Louise Harris
Her Worship Mary Ross
Hendriks has been a
rights activist her
whole life, starting in
nursery school when she
complained about the treatment of students. Her articles were at Sneath Wilkins
in insurance defence. From
there she went on to the
boutique firm of Eversley
and Sui, as a litigator doing
corporate and securities
work. That led to a decade
in the regulatory policy
realm. For six years she served as a Vice Chair of the Human
Rights Tribunal and in 2006-07 she was cross appointed to the
Social Benefits Tribunal

“We move around a great deal, perhaps more than other
benches do,” says Ross Hendriks. Sitting in Toronto means sitting in the courts at Old City Hall, 311 Jarvis St. for youth bail,
College Park, Centre Avenue and Edward Street, 1000 Finch,
2201 Finch W, 2700 Eglinton W. and 1530 Markham Road (POA)
and 1911 Eglinton East (Criminal) in Scarborough. “Certainly,
our colleagues in Northern Ontario have considerably greater
distances to travel, but we also get our fair share of “windshield
time”, she adds.

An increasing number of lawyers are applying to the Justice
of the Peace bench, many bringing non-traditional uses of their
law degree. The composition of the Justice of the Peace bench
remains a microcosm of society, with government employees,
teachers, academics, former police officers, business people
and community activists from diverse backgrounds.
Ross Hendriks is effusive in her praise for the solid grounding offered to her on her Justice of the Peace appointment, citing Senior Regional Justice of the Peace Diane McAleer’s inclusiveness and generosity of time, and Justice of the Peace Gary
McMahon’s mentorship.

“We received excellent training, which is ongoing, and includes everything from time management to practical advice
on list management and real life examples of how to apply the
law. Our mentors and other senior members of our bench make
themselves available regularly to provide assistance and counsel,” adds Ross Hendriks. “Every day is an opportunity to keep
honing my skills and participating in the adjudicative world,
which I love.”

An OBA member since she was a law school student, she continues to maintain her membership. “I sat on OBA Council and
was the chair of the Equal Opportunity Committee. I continue
to attend section programs, such as criminal law and constitutional and human rights as a form of CLE. The Feminist Legal
Analysis Section’s programs keep me up to date on other important issues. You can become isolated. This is a great way of
staying in touch with both issues and people,” she adds.
When not working, Ross Hendriks and her husband John and
16 year-old son Michael like to ski in the winter and vacation
in Ontario’s cottage county in the summer. “I’m surrounded by
family fisherman,” says Ross Hendriks, “so what can be more
peaceful than being out in a boat on the water with the sun
shining?”

Her Worship’s passion for the rule of law, her background
and life experiences and commitment to life-long learning
make her a valuable addition to the Justice of the Peace bench
in Toronto.

www.ontariocourts.on.ca

In 2007, she was appointed as a Justice of the Peace in Toronto,
in the first group of 37 under the arms length process begun by
former Attorney General Michael Bryant.
Briefly Speaking • En Bref | June 2010

17

legal aid ontario update

Legal Aid Ontario improves services for
clients and lawyers
Legal Aid Ontario (LAO) has launched a “modernization strategy” to streamline administration, improve client services,
provide increased value for taxpayers, and support Ontario’s
justice system reforms. As part of this strategy, which supports the organization’s legislated mandate to provide highquality and cost-efficient legal aid services, LAO is also integrating technology to modernize all aspects of legal aid.
Improvements for clients

LAO’s services now help clients get the “right service at the
right time”. LAO’s popular toll-free number (13,000 callers
in February 2010), courthouse locations, and revised website are now the primary access points for a client service.
Vulnerable clients (i.e. domestic violence, mental health)
get priority assistance at any point of contact with Legal
Aid Ontario.
Legal aid: toll-f ree

Clients can access a full-range of legal aid services toll-free
over the phone in 120 languages, including summary legal
advice for family and criminal law matters, and referrals certificate applications
Cour t-based ser vices

By the end of April 2010, clients will be able to have access
to services such as filling out certificate applications in
more than 40 courthouses across Ontario. These courthouses hear more than 80 percent of all criminal matters
in Ontario, and in 2009 more than 13,000 people received
assistance through a courthouse location
Improved website

LAO’s revised website is more user-friendly and provides
detailed information on legal aid services. Since launching
in late November 2009, the site has had more than a quarter
million visitors, and over one million page views.
New payment methods

LAO recently introduced new payment methods with the
goal of reducing the number of certificates that are cancelled for non-payment of contribution agreements. Clients
can now make payments at bank branches, and through
telephone and online banking.
18

Improved f inancial test ing
LAO is making it easier to understand financial eligibility
criteria by reducing the number of documents required
to apply for legal aid. A new income-based eligibility test,
which is expected to improve client services and fast track
the process where possible, is currently being piloted across
the province.
Working with lawyers

LAO recognizes the significant contribution of the 4,100 plus
private lawyers who provide legal assistance across Ontario,
helping low-income Ontarians access good quality legal services. The Memorandum of Understanding (MOU) between
the Ministry of the Attorney General (MAG), LAO and the
Criminal Lawyers’ Association (CLA), signed in January 2010,
lays the groundwork for each of these organizations to work
together. This includes a new complex case rate, block fees,
a commitment to support LAO’s modernization strategy and
an increase to lawyers’ hourly fees by an average of five per
cent annually for the next seven years.
Block fees

The introduction of block fees on May 1, 2010 for the appropriate resolution of some of the most common summary
criminal charges will expedite payments and bring more
clarity, transparency, and fairness to LAO’s billing rules. For
lawyers accepting criminal certificates, block fees ensure financial certainty and help their bottom line. The block fees
roll-out for the most common summary matters is the first
phase of block fee deployment for criminal matters. LAO is
committed to consulting with the CLA and criminal lawyers
over the course of the year to develop recommendations and
amendments for the second phase, which will expand block
fees to other summary and many indictable criminal charges.
LAO will also work with the CLA and others to monitor and
update quality standards or requirements based on the lessons learned from the first phase of the block fee program.
New complex case rate

Another significant component of the MOU is the implementation of the Code/ Lesage recommendation to create enhanced fees for highly qualified lawyers who work on the
most complex major criminal cases. The new complex rate
is not tied to a specific list of charges, as lawyers can apply
on a case-by-case basis for consideration. An outline of the
June 2010 | Briefly Speaking • En Bref

LAO is enhancing e-certificate transactions as part of its
ongoing efforts to modernize the way it does business, and
make legal aid work easier for lawyers. Online billing and
other tools such as Online Lawyer Acknowledgement speed
up payments and expedite the certificate process. New features allow lawyers to view certificates waiting to be acknowledged, and see approved amendments and authorizations online.

Clinic Program Funding:

LAO’s restructuring will continue throughout the coming
year with new innovations and improved services for clients
and lawyers. The future of Legal Aid Ontario will be based
on the principles of more tailored client services, less costly
infrastructure and greater oversight and support for service
providers.
LAO Fast Facts:
District Model
•
•
•
•

LAO’s “district model” restructures the traditional
model of 51 separate offices into nine larger districts.
District offices will improve the coordination and accountability of legal aid services, including supporting
legal aid lawyers, managing local panels, and building
relationships with justice system partners.
The district model improves the coordination and accountability of legal aid services.
LAO is working on a number of area committee reforms, including centralizing area committee functions within each district, so that appeals are processed quickly and more consistently

Certificates
•
•
•

Year

In 2008-09 LAO issued 117,169 certificates
Average cost of regular criminal certificate: $1,675.00
Average cost of regular family certificate: $1,826.00

2008- 09

Certificate
type

Certificates
issued

Budget
(000)s

Criminal

68,453

$102,901

Family

30,107

$50,755

Immigration 12,706
and Refugee

$17,701

Other civil

$6,450

5,903

•

In 2008/9 Legal Aid Ontario settled more than
215,000 accounts for more than 4,100 private lawyers who billed for work completed on behalf of legal
aid clients.

LAO has introduced a simplified online application
process (SOAP) that reduces the time to complete an
application by 62 percent.
Sixty-three percent of clients receive a same day decision on their legal aid application, allowing them to
move forward with their legal matters.
Clients can access a full range of legal aid services over
the phone, including applying for certificates.
In February 2010, almost 13,000 people contacted
LAO toll-free for legal aid assistance.
LAO has increased online information and resources
by redesigning and re-launching its website (http://
www.legalaid.on.ca).
Since launching the site in late November 2009, the
site has had almost 257,000 visitors, and over a million page views.
Legal Aid Ontario is providing more direct services
in courthouses across the province. This includes increasing the number of LAO offices in courthouses,
and enhancing the duty counsel program.
As of April 2010, there were more than 40 Legal Aid
Ontario courthouse offices in locations across Ontario
where clients can access our services. These courthouses hear more than 80 percent of all criminal matters in Ontario.

ashechewan is a First Nations community that rests
uneasily on the shores of James Bay. A dike surrounds the
village, expressly to keep the cold waters at bay in the
spring. The population of this small community hovers around
1,100. Its people regularly struggle against catastrophes, both
as individuals and as a community. Their troubles come in the form of contaminated waters, floods,
s u b s t a n c e a n d a l c o h o l a b u s e , and s u i c i d e s . A b o u t e v e r y t h r e e m o n t h s , w e l a n d h e r e i n o u r c h a r t e r
aircraft, not unlike the Indian agents of decades past.

January 27 - Advance Day - 10:15 AM
After a 90-minute flight from Timmins, our plane bounces to
a grating stop on the gravel airstrip in Kash. A motley crue
- four defence counsel, one Crown and one community legal
worker - peers outside for signs of the pre-arranged ride into
the village. We muse out loud about the likelihood of freezing our knackers off. The conversation turns to the length
of tomorrow’s docket—over 300 entries on the adult docket
alone. We’re amazingly upbeat, considering the difficult work
that lies ahead.
10:40 AM Advance Day is a concept known only to northern circuit lawyers. Intended to provide opportunity for client meetings before court, it’s a capital idea in theory. But
it means nothing when four lawyers and a CLW are packed
into a 12-by-40-foot room with a boardroom table. We arrive,
shuffling our bodies and bags around in the cramped space.
We wait and one-by-one, clients arrive. Privacy is in short
supply and we make do. By 2:30 PM, business has dwindled
and we trundle back to the plane.
January 28 - Court Day – 5:00 AM

My alarm clock goes off way too early, or does it? I roll out
of bed, trying to regain my mental equilibrium. The charter
is leaving at 6:30 AM. Lots to do. I pull on my long johns and
grab a wool sweater, cringing at the thought of the cold day
ahead. In my home office, I sort through my court bag and
make sure that all of the day’s files and supplies are at hand.
In the kitchen, I prepare my lunch and grab two bottles of
water before heading out the door.

20

6:45 AM Timmins is cold in the morning but there’s nothing
quite like planting your butt on the hard cold vinyl seat of a
frozen airplane. This is it. I will be chilled from this point forward until I am home again, despite all of the tidy measures
that I’ve taken.

Our plane will land in Kapuskasing, Hearst and Moosonee before finally arriving in Kash around 9:30 AM.

10:00 AM The pick-up truck-slash-taxi drops us off at the
community arena in Kash. The front foyer of the arena, where
court convenes, is empty and we learn that the judge is late.
This is not a promising start for a 15-page docket. Again,
the lawyers jockey for work space. People arrive in groups
and soon the foyer is crowded. The door is kept open for no
apparent reason and the makeshift court is soon at a steady
temperature of what feels-like 10 degrees Celsius. I chuckle
naively as I get out my HotPaws which soon prove themselves
useless. The last laugh is on me.
A Hearst lawyer, rookie to the James Bay circuit, has come to
court without proper attire – that is, winter boots and long
underwear. We old vets shake our heads and smile. He’ll
know better next time, poor thing.

10:40 AM - The judge arrives and court is soon underway,
standing room only. Justice Patrick Boucher is a new appointment. He replaces Justice Ronald Boivin who has left us
for the warmer and headier climes of Old City Hall in Toronto.
The judge briefly introduces himself to the restless crowd.

Two trials have been scheduled but it’s very clear that they
won’t be heard. Justice is not quite on target here in Kash.
Eleven hundred kilometers is a long way from Toronto and
the arrows have missed their mark. Many accused see their
matters adjourned repeatedly because there is no time for
them. The dockets are typically over ten pages in length and
even a simple plea matter can take a half-hour if Cree-English
interpretation is required. Court is held only once every
three months so many matters are “long in the tooth” when
they reach their final disposition, by trial or plea.
3:00 PM - The lawyers take their turns huddling under a ceiling heater at one end of the foyer, like pigeons over a subway
grate. The judge shows amazing fortitude for low tempera-

June 2010 | Briefly Speaking • En Bref

tures, or maybe he’s hiding a heater under his robes. All of the
lawyers are garbed in coats, scarves and gloves as they make
their submissions. My water supply is exhausted and so am I.

My attention is sparked by the judge’s reference to a winter tragedy. After a few inquiries, I learn that a young man died on the
dike last night, on his snow machine. Many accused have not
shown up for their court appearances but the judge has decided
that he will not issue warrants in the circumstances. News of
this death sets a pall on the proceedings for the rest of the afternoon.
4:45 PM - A family law lawyer has come from Timmins to address her matters. In Kashechewan, rarely more than 10 minutes
is ever devoted to the family law docket. After adjourning the
entire family law docket for shortage of time, court is in recess
and we begin to pack up. We’re all very eager to board the plane
and head out.

7:30 PM – After what seems like an interminable flight with
stops in Moosonee, Kapuskasing and Hearst, we make landing
in Timmins. I feel like I’ve been away from home for weeks, although I can’t explain why. We will do it all again in two weeks
when we head up to Attawapiskat.
Nancy E. Cooper is a sole practitioner with a criminal law practice in Timmins.
Photo: Johanne Levesque for “Kashechewan and Fort Albany From the Air”.

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Briefly Speaking • En Bref | June 2010

21

Book Review

Getting to Grips
with Electronic Discovery
Electronic Discovery in Canada: Best Practices and Guidelines (2nd edition)
by Oleh Hrycko and Chuck Rothman

David Outerbridge
The second edition of Electronic Discovery in Canada: Best
Practices and Guidelines, released in fall 2009 by CCH, is a
helpful, practical guide to carrying out electronic discovery
within an organization. The focus and greatest strength of
the book is its explanation of how to complete the essential
steps of e-discovery in an intelligent and methodical fashion.
Although the text contains a high level review of e-discovery
case law and legislation, Electronic Discovery in Canada is not
intended to serve as a primer on e-discovery law. Rather,
it is a book about the “how” of e-discovery, written against
the backdrop of the Canadian legal environment. The book’s
authors are Oleh Hrycko and Chuck Rothman, both of H&A
eDiscovery, a commercial e-discovery and computer forensics litigation support provider. Mr. Hrycko is an accountant
by training, and Mr. Rothman is a professional engineer with
computer science expertise.
The second edition of the book has been substantially reorganized and rewritten compared to the first edition that was
released in 2007 (which was reviewed in the January 2008
edition of Briefly Speaking). The book is 350 pages, with 15
chapters of substantive text taking up 177 pages, and a glossary and several helpful appendices making up the remainder, consisting of pertinent practice directions, new civil procedure rules and e-discovery guidance documents.

It is the “how to” portions of the book in Chapters 6-13 and
15 that have seen the greatest changes. The organization of
these chapters now follows the structure of the Electronic
Discovery Reference Model (EDRM), beginning with a chapter on information management, followed by chapters dealing with each discrete step in the discovery of electronically
stored information (ESI): identification, preservation, collection, processing, review and analysis, and production and
presentation. The new Chapter 15 is a step-by-step guide to
assembling an e-discovery team for a litigation matter. At the
same time, one of the best practical components of the first
edition of the book has been retained – Chapter 2, which is a
very effective explanation, in lay person’s terms, of how computers work and are structured, and of how computer forensics can be employed to capture various forms of ESI.
22

Another important change in the second edition of
Electronic Discovery in Canada is the revised Chapter 5, which
reviews the rapidly developing area of national and provincial e-discovery principles and guidelines. Most notably, the
authors have added a review of the Sedona Canada Principles
Addressing Electronic Discovery. This set of national e-discovery guidelines is quickly becoming the pre-eminent source of
e-discovery guidance in Canada, with both legislatures and
the courts increasingly referencing and incorporating the
Sedona Canada Principles as part of Canadian e-discovery law.
Also new is a review of some of the key e-discovery amendments to Rules of Civil Procedure in several Canadian jurisdictions (including Ontario, Alberta and Nova Scotia), and a
description of the model e-discovery precedents and other
e-discovery guidance documents prepared by the Ontario
E-Discovery Implementation Committee.
One constructive criticism, looking toward a future edition of the book, is that the text’s high level review of applicable e-discovery law sometimes omits important details. For
example, while the text reviews the Sedona Canada Principles
as well as the latest e-discovery amendments to the Ontario
Rules of Civil Procedure, there is no mention of the important
fact that new Ontario Rule 29.1 now requires parties to consult and have regard to the Sedona Canada Principles when negotiating a discovery plan. There are other instances where
the text’s review of the applicable law is more illustrative
than comprehensive. For detailed consideration of Canadian
law regarding e-discovery, readers will want to consult some
of the increasing number of available texts in these areas.
In its primary role as a sensible, useful and easily digested
how-to guide to carrying out e-discovery within a corporate
organization, Electronic Discovery in Canada accomplishes its
objective. The book will continue to be an important part of
the library of any law firm or corporate law department. Mr.
Hrycko and Mr. Rothman are to be commended for their work
in contributing this helpful addition to the Canadian literature on e-discovery.
David Outerbridge is Counsel in the litigation department at Torys LLP in Toronto
and is chair of the Ontario E-discovery Implementation Committee.

June 2010 | Briefly Speaking • En Bref

Briefly Speaking â&#x20AC;˘ En Bref | June 2010

23

JUST for laughs

Lawyers - It’s a Real Zoo Out There
Marcel Strigberger
I recently attended at a potential client’s home. He
was a middle aged gentleman of east European origin, who
was injured in a serious motor vehicle accident. He wanted
to check me out. I was to be given a once-over not only by
his family but also by other members of the community,
including the parish priest. As an incentive for the house
call, he promised me a piece of the best baklava this side of
the Acropolis.

As I rang the doorbell, I heard a loud barking. George
opened the front door and out leapt a huge German shepherd,
the size of the Trojan horse. This dog seemed to have an avaricious appetite for strangers, equalling the appetite I had
minutes earlier for that baklava. Fortunately for me he just
sniffed me, like a runaway Hoover. I had heard that if dogs
sniff you, you should hold out an open hand. I did that for a
minute or so waiting for him to work his way to my hand,
from my forehead.
He backed down as soon as George shouted, “Tiger, down”.
I had no doubt passed the friend or foe test.

The monster dog, however, continued to bark ferociously.
George then yelled, “Tiger shhh, the lawyer is here.”

24

Naturally, at this point I expected Tiger to appreciate the
gravity of that comment and to settle down accordingly. Tiger
should have been saying to himself, “The lawyer is here? Oh
yeah, George is probably paying this guy $350 an hour. That’s
a lot of kibbles. I’ll back off.”

No such luck. Tiger continued running around and barking.
George bellowed, “Shut up Tiger, I want to speak with the lawyer.”
Maybe it was the word lawyer that did it because Tiger suddenly lunged at me again and resumed his sniffing.
I pondered what went on in Tiger’s mind. Was he checking
out my credentials, like that priest was going to? Before hiring a lawyer, have him checked out by the parish priest and
the dog. It even crossed my mind that perhaps the priest had
a different function altogether. Maybe in the event that Tiger
took a strong dislike to me he was here ready to administer
last rites. Just a thought.

George summoned his teenaged daughter, who came over
and handed me a little doggie treat. Actually the treat was the
size of a football. Vanessa said to me, “Give him this, he’ll be
your friend.”
I wasn’t sure how I was to give it to him. I sure as hell wasn’t
going to turn around and hike it to him on a three count. With
trepidation I held out the treat in my right hand (I’m a lefty).
This seemed to placate Tiger who gobbled up the football in
one chew, and departed in peace.

We all took our places in the dining room and suddenly
a new guest arrived. Out of nowhere this grey Angora cat
popped up and started brushing herself against my trousers.
I smiled and started patting the cat. George shouted at the
cat, “Go away Ginger. Don’t bother this lawyer also.”
June 2010 | Briefly Speaking • En Bref

JUST FOR LAUGHS
This lawyer also? What method did this guy use to choose
lawyers? The pet test? If Ginger holds up a card with the number 10 on it, I’m in?
I suddenly started sneezing uncontrollably. George’s wife
Helen offered me a cup of tea. I asked for Kleenex. This arrived along with Ginger, who now lodged herself on my lap.
Once again Vanessa came to the rescue and removed
Ginger. She was careful not to drop a large green parrot
standing on her shoulder.
George continued with the introductions. He said to the
parrot, “Say hello to the lawyer, Bugsy”.

The bird was not too responsive. He simply flapped his
wings a couple of times and remained mum. I guess he must
have seen lawyers before and had an unsavoury experience.
Maybe he came up short in an estate fight. A will failed to
leave him a huge expected legacy. Who knows?

In order to refute the allegation of parrot harassment,
I tried to get the bird to talk. I said, “Hello? Bugsy? Want
a cracker?”
No luck. He was as silent as that Monty Python parrot. The
Birdman of Alcatraz couldn’t make him talk.
Vanessa left and eventually we got around to discussing
the case. And to eating that baklava.

It’s been a couple of weeks and I have not yet heard from
George. Whatever will be will be. I did, however, get an idea
for practice development. Perhaps there ought to be a continuing education seminar on how to deal with your clients’
pets. Does anybody know where we can locate Dr. Doolittle?
Marcel Strigberger is a humourist trapped inside the body of a civil litigation
lawyer- see www.legalhumour.com.

Vanessa exclaimed, “He usually repeats stuff. Maybe you
scared him.”

Save the date
CBA Canadian Legal Conference in Niagara
from August 15-17

CLC events will ensure you take in the full beauty and excitement of
one of Canada’s premiere wine regions. The main conference sessions are taking place at the Sheraton on the Falls with receptions
and events throughout the vineyards of Niagara. Opening Night
Festivities at Table Rock Center are at the brink of the thundering
falls while the closing evening will let you explore wine country.

About this time a year ago, the OBA launched a pilot mentorship program in the East Region, matching over 40 young lawyers with experienced counsel. Using
a process that allowed applicants to self-identify personal
characteristics, we brought together lawyers who were sole
practitioners, working mothers, coping with disabilities, in
minority groups, of particular religious beliefs, and in the
same practice area, all in different firms, government positions and in-house roles. The aim was to benefit all involved:
to allow mentors to give back to the profession and develop
a meaningful relationship with their matches; and to provide
crucial guidance to lawyers embarking upon the profession.
With high hopes, at the half-way mark of the program we
sought feedback from our participants. It turns out, overall,
members were pleased with the matching process and were
finding the Program valuable.
Current participant, Angela Fallow, commented on her experience with mentor, Heidi Bergeron, in Kingston this year:

s a sole practitioner and recent call (2007) with two post-call
A
maternity leaves under my belt, I welcomed the recent opportunity to enroll as a mentee.
I n our chats, my mentor has provided more than just advice on
building a law career as a sole practitioner. It is well known
that the “practice” of motherhood and the practice of law,
whether as a sole practitioner or as a member of a large firm,
can be incompatible. I was grateful for the concrete inspiration
of a mentor who was successfully managing both a growing
law practice and a large family.
Janet Lo of Ottawa has also had a positive experience with
mentor, Margot Patterson:

y mentor has provided me with excellent support in my first
M
year of practice. Our frank one-on-one conversations, especially
discussions about career development and networking, have
been extremely beneficial. I’m very appreciative of her time and
her willingness to share insights about her practice.
The message was clear that this was a program worth continuing. The OBA Board of Directors agreed.

26

Accordingly, the Mentorship Committee is thrilled to announce a significant expansion of the Program throughout
the province. Regional chairs have graciously agreed to administer the Program in the greater Toronto area, Windsor,
Guelph, Sudbury, Thunder Bay, Sault Ste. Marie, and continue
in Ottawa / Kingston, where it all began. This issue of Briefly

Speaking coincides with the launch of our new recruitment
campaign and, as such, we encourage you to get involved.
The time commitment is minimal by design: we request
contact once every six weeks as a guideline. We found that inperson meetings are best, if possible, but that phone calls and
e-mails are also valuable. The program runs from September
to June, with the option of extending the contract if mutually
desirable.

“I was grateful for the
concrete inspiration of a
mentor who was successfully
managing both a growing law
practice and a large family”

The first year was marked by kick-off breakfasts in Ottawa
and Kingston and will close with upcoming finale and recruitment events in June. We envision a similar format in all
regions next year. With the help of co-chair Mark Berlin; committed OBA staff; and a devoted Mentorship Committee, we
have laid the groundwork for the Program to move forward;
complete with a website featuring application forms, program guidelines and discussion topics.
Personally, seeing the Program grow and succeed has become a source of great pride; I am a great believer in the benefits of mentorship, especially as a young lawyer, and know
that there is much to be learned in our profession beyond
substantive law. Many thanks to our East Region Pilot participants for helping us put together a program that we hope
to sustain and offer to OBA members for years to come.
To sign up or learn more about the OBA Mentorship
Program, please visit www.oba.org/mentorship.

Alayna Miller practises labour and employment law in Ottawa at Sevigny
Westdal LLP. She is the co-chair of the Mentorship Committee in the East Region
and a member of the OBA’s YLD East Executive.

June 2010 | Briefly Speaking • En Bref

A Plan For the Future: Challenges and
Opportunities at the Wills Project
Maria Sagan

O

pportunity defines the Wills Project, a volunteer legal clinic directed by law students
and affiliated with Pro Bono Students Canada.

At the Project, students and volunteer lawyers draft and execute wills and powers of attorney for low-income clients
who are HIV positive. As the Osgoode Hall coordinator of the
Project, I am exposed to all the challenges and opportunities
confronting such a volunteer legal service.
Our primary challenge is client recruitment. The Project
holds one wills education session per semester which is intended to be both an information meeting and a recruitment
program. Without this session it would be difficult to attract
clients as many people are unaware of the service or are distrusting of the legal system. Those who attend do not always
qualify for the Project as the criteria for low-income designation is strict. It is difficult to argue that someone receiving multiple disability and government pension plans should
be turned away, especially considering that he or she is HIV
positive, and yet it happens every year.

The program’s restriction to those who are HIV positive
also ignores the needs of other communities. There is no
similar service for the general low-income population, or for
those who have low incomes and suffer from a different lifethreatening illness, such as cancer.
Candidates who qualify for the Project are matched with
two student volunteers, either from Osgoode Hall or the
University of Toronto, and a volunteer lawyer. Appointments
with the lawyers and students are an opportunity for the client to talk about his or her life while others are listening.

As communication is sometimes difficult, there are often
waiting periods for these appointments. For example, clients
do not always have voicemail on their phones. Further, scheduling two meetings between four people proves to be a challenge. Meetings are booked either at the volunteer lawyers’
offices or at the 519 Community Centre, as the Project does
not have a formal office space.

As the end of the winter semester is upon us, the Project
is coming to a close. This exemplifies yet another challenge
facing this service—because it is student-run, wills are not
written over the summer. While seemingly unjust, this is the
reality of a volunteer project.

per semester. Their advice and flexibility are invaluable to
the Project.

A lack of full-time staff and resources, and the unique issues of the community it serves, are genuine hurdles facing
the Project. Yet, its existence impacts many lives, including those of the students and lawyers who work within its
boundaries. Clients often return after many years to make
changes to their wills. Despite its challenges, the Wills
Project provides a small, disadvantaged group with peace
of mind and the knowledge that they are in control of their
future. This end result brightly overshadows most of the obstacles described above, making the Wills Project a vital and
most worthwhile service.
Maria Sagan is a third-year student at Osgoode Hall Law School.

The Project is fueled by the spirit of its volunteers. Without
their enthusiasm and dedication, no wills would be written.
Our success is dependent on the help of the lawyers who supervise the drafting of one will and set of power of attorneys
Briefly Speaking • En Bref | June 2010

27

All In The Family
Bill 133, Family Statute Amendment Act 2009 (Act)
Elizabeth C. Mourao
“ F amilies need a justice system that supports them and their children. We are changing the family
justice approach so that it is less confrontational, faster and more affordable for the people it serves”
(Attorney General Chris Bentley, Press Release - March 1, 2010)

In late 2008, the Ontario provincial government introduced Bill 133, the Family Statute Amendment Act 2009 (Act),
as a means to address key issues in the province’s family
courts, particularly in improving the public’s access to justice, addressing deficiencies in the custody regime and improving fairness in matrimonial property and pension division. Bill 133 came into force on March 1, 2010.
In an effort to create a family law process that keeps
families away from costly adversarial proceedings, Ontario
courts will look to make available to parties at an early stage
of a proceeding, legal information on alternatives to the court
process, such as the use of qualified mediators, collaborative lawyers, parenting coordinators and family arbitrators.
Additionally, Bill 133 hopes to simplify paperwork and steps
needed, to ensure that those who do remain in the system
will have their matter quickly heard and decided by a judge.

Changes to the child custody components of Bill 133 came
about as a response to the death of seven-year-old Katelynn
Sampson in the summer of 2008. The child’s legal guardian,
Donna Irving, was convicted of the murder, along with her
boyfriend Warren Johnson. Irving had been granted full custody of Katelynn two months before her death. Katelynn’s
mother was a drug addict who was unable to care for her. The
biological father was also said to be a drug addict. Her mother
signed a consent granting Irving full custody of Katelynn. No
child and family services agencies were involved in the court
proceeding. Moreover, no criminal record search had been
done of Irving or Johnson prior to the custody order being
28

made. As it turned out, Irving had prior criminal convictions
for prostitution, drug trafficking and assault with a weapon,
while Johnson had faced prior charges for assault.

With the amendments to the Children’s Law Reform Act introduced by Bill 133, specific evidence must now be placed
before the court on custody and access matters. Both parents and non-parents seeking custody or access to a child
must now file a sworn affidavit that contains a plan of care
for the child, information as to who will be residing with the
child, and any information concerning their previous or current involvement in any family or criminal proceedings. Nonparents must take it a step further and submit a police record
check and verification from the Children’s Aid Society as to
their prior or current involvement with the organization.
The Children’s Law Reform Act was further amended so that
a parent whose name was left off their child’s birth certificate
will be able to apply to a court to have their surname added
to the child’s surname when the court grants a declaration
of parentage. Additionally, the Children’s Law Reform Act now
changes and simplifies the process of obtaining restraining
orders.
Bill 133 also addressed changes to perceived difficulties
in dealing with the division of property. Amendments to the
definition of “Net Family Property” in the Family Law Act now
specifies that debts and other liabilities to be excluded from
the calculation of the value of property owned by a spouse
on valuation date include any contingency tax liabilities in
respect of property. The definition of “Net Family Property”

June 2010 | Briefly Speaking • En Bref

that the changes introduced simply do not go far
enough.
For example, Bill 133 failed to implement an accessible and cost-effective out-of-court mechanism
that automatically recalculates child support payments each year based on updated financial disclosure provided by the payor spouse. Presently, any
formal variation in child support necessitates the
commencement of proceedings that are normally
expensive and time consuming.

now excludes from the calculation of the value of property
owned by a spouse on the date of marriage those debts that
are directly related to the acquisition or significant improvement of a matrimonial home.
Additionally, Bill 133 introduced new sections to the
Pension Benefits Act that, in part, include provisions for the
valuation of pensions to be carried out by pension plan administrators, and not actuaries. The aim is to reduce, if not
eliminate, the battle of the experts and corresponding litigation that can ensue when pensions are valued.
While the changes to the current family law regime are
welcomed by many, some family law practitioners believe

Ontario Bar Association

Also left out was a change to the current definition of “matrimonial home” within the Family
Law Act, which financially penalizes a spouse who
owned a home at the date of marriage if they still
happen to be residing in the same home when separation occurs. Under current legislation, spouses
lose their right to the date of marriage deduction
although they may have owned the home outright
prior to marriage. Some practitioners had hoped
that Bill 133 would have introduced language to address the
inherent inequalities that can arise in such situations.
The general consensus is that the changes brought by Bill
133 are a terrific first step in making family courts more
accessible to the public while trying to address grey areas
where change was needed. Let’s keep the momentum for improvement to our family courts going!

Elizabeth C. Mourao is an associate with Ricketts, Harris LLP. Her practice is
restricted to family law.

Mentorship
The Ontario Bar Association is launching a
mentorship program that will give young lawyers
a head start into the legal profession.
Applications are being accepted now. For complete
information, visit the web page
www.oba.org/mentorship
This program will be offered in:
•
•
•
•

he American Bar Association’s 24th annual TECHSHOW showed legal professionals
how technology can advance their practice on either side of the border.

If there is one place the gap between law and technology is
comfortably bridged, it is at the American Bar Association’s
mammoth annual TECHSHOW in Chicago. Lawyers, paralegals and law firm tech professionals come from all over North
America to learn how technological advances are shaping the
legal profession—and vice versa.

The 2010 line-up included more than 60 sessions spanning 15 topical tracks, from eDiscovery to paperless practice
to operating a law firm in the “cloud” (on the Internet). New
programs this year focused on social network marketing and
smart phones. More than 100 technology-based legal support
services displayed their wares—both hard and soft—in the
cavernous exhibit halls.
One Canadian presenter used her own business model to
exemplify how technology is transforming traditional law
firms to gain competitive footing in a rapidly changing marketplace.

In Taking Your Office Virtual, BC lawyer Nicole GartonJones discussed how shifting economic realities and moves
to staunch the exodus of women lawyers from the profession
make virtual law offices a viable and practical solution.

In The Travelling Lawyer, Garton-Jones advised lawyers
who spend time on the road to get their law firm into the
cloud. “Road law-rriors” need to invest in the right equipment, make full use of smart phone business features and
maintain an “in-office mindset” on the road while keeping
vigilant about security.

A session on eMarketing to Clients and Prospects advised
lawyers to become sophisticated about using e-mail, video,
podcasts and blogging to add value to practice offerings and
attract new business.
Sixty iPhone Apps in Sixty Minutes was a popular session led
by New Orleans attorney and blogger Jeff Richardson. Among
Jeff’s top picks (“This app changed my life!” he enthused) is
LogMeIn Ignition. The app allows remote log-in directly from
your iPhone to your land-based computer at home or at work.
(Picture how tech support “takes over” your mouse at work
to diagnose a problem: it works like that.)
30

Dragon Dictation is a useful free app for lawyers on the go.
Speak into the app on your iPhone. Dragon Dictation transforms your voice to text. You can choose to drop it into an
e-mail, select a recipient and push send. Virtual. Magic.
Another Richardson recommendation is the DaysFrom
Date calculator. Set up the app with date ranges you use most
(30 or 90 days, for example). Once you pick the starting reference date, the ending dates are automatically listed. Never
miss a filing deadline.

TECHSHOW offers a refreshing mix of practical and theoretical advice. Vendors are generally not allowed to lead
conference sessions and presenters are sought out who are
enthusiastic about technology for technology’s sake. Faculty,
then, is predominantly legal professionals chosen for their
hands-on experience in devising technology solutions in
their own practices.

If the prolific number of “tweets” scrolling on monitors
around the registration desk from lawyers around the country was anything to go by, the North American legal profession is enthusiastically embracing new technologies.

When the ABA TECHSHOW opens its doors at the Chicago
Hilton in April 2011, it will celebrate its 25th consecutive
year. Clearly, law and technology have been moving on parallel tracks for some time. Attendees here would undoubtedly
agree that keeping the law up to speed with technology is not
only necessary and professionally advantageous but just gr8.

Margot MacPherson Brewer, M.A., LL.B. is a lawyer
and writer living in Ottawa

June 2010 | Briefly Speaking • En Bref

THE CONFERENCE CENTRE
AT THE OBA

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The Conference Centre can meet your every need. Our licensed facility offers a
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The Conference Centre has 24 hour security, wheelchair accessibility and offers
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Wing, at (416) 869-1047 ext. 321 or by e-mail at awing@oba.org.

You can also visit our website at www.oba.org/conferencecentre.
All OBA members receive a 15% DISCOUNT on room rentals.

Ontario’s Paperless
Practice Pioneer
appointed to prestigious American Bar Association
technology conference planning board
Margot MacPherson Brewer
The first question for Donna Neff was going to be why she
thinks she is the first Canadian woman lawyer to be appointed to the American Bar Association’s TECHSHOW Planning
Board.
Then Neff picks up what looks like an old-fashioned fountain
pen. “You need a Livescribe,” she says. Neff holds up the digital
pen with a built-in recorder she is using. The new-to-market
pen takes notes in pixelated notebooks that timestamps what
is written on the page in sync with the recording. Later, tap on
the page and the recording rewinds to exactly what was said
while you were writing.
The opening question was rendered moot.

Donna Neff is a solo estates, wills and real estate practitioner in Stittsville, just minutes from downtown Ottawa. She
exudes enthusiasm for technology and delights in being considered a geek. Neff needs little encouragement to hold forth
about how technology has changed her law practice and ultimately, her life. In fact, it is that combination of passion and
practicality that led to her appointment to the TECHSHOW
Planning Board.

“work/life balance was
behind her initial decision to
get onboard the technology
bandwagon.”

“What sold me on going paperless four years ago was the
amount of time we wasted looking for documents that were
misfiled, misplaced, or stored on somebody’s desk,” she explains. “Storage boxes full of files were beginning to pile up
in my basement and I thought, if I practise for another 10 to
15 years, we are going to run out of room. Every lawyer can
identify with that.”
The transformation of her office didn’t happen overnight,
but what had previously seemed to be insurmountable obstacles eventually melted away. After researching the right
equipment, software and developing office protocols to ensure compliance with the new system, Neff’s office began the
conversion to paperless in 2006.
32

Neff’s successful experience with the conversion of her
own office systems led to wider recognition as an expert in
advising others on how to set up a paperless law office. In
May 2008, she spoke at the LSUC/OBA Solo and Small Firm
Conference on “going paperless.” That led to her appointment
as co-chair (with Dan Pinnington) of the same conference in
2009 and 2010.
Neff graduated from participant to faculty at the annual ABA
TECHSHOW in Chicago by offering a law practice management
session to the 2,000 or so legal technology professionals in attendance.

Neff believes it is primarily her tremendous enthusiasm
for anything technology and law practice management related that ultimately led to her three year appointment on
the TECHSHOW Planning Board. Her goals during her tenure are to make TECHSHOW more accessible financially and
more widely known in Canada. Approximately 80 Canadian
legal professionals attended the conference this year and she
would like to see that number increase. “Until you come here,
you have no idea how valuable it is,” Neff says.
Neff has a larger agenda that motivated her to seek out the
efficiencies of technology solutions in small firms. She believes greater uptake of remote access and mobility solutions
have huge potential to positively transform the profession, especially for women. “Why are women not staying in law? The
profession is currently not friendly to families. Technology
can help with that.”
For all her professional motivation Neff admits work/life
balance was behind her initial decision to get onboard the
technology bandwagon.

“Thanks to remote access, I was able to go to South
America for a whole month in the winter of 2008. Most small
firm lawyers are completely tied to their offices. For all but
three days, when I was watching penguins off the coast, I
was in touch with my office over the Internet. How many solo
practitioners feel they can’t get away from the office for an
extended period of time? Well with technology, they can.”
Margot MacPherson Brewer, M.A., LL.B. is a lawyer
and writer living in Ottawa

June 2010 | Briefly Speaking • En Bref

Model Discovery Plan and E-Trial
Precedents Released
David Outerbridge
The
Ontario
E-Discovery
Implementation
Committee (EIC) has recently released public comment
drafts of six new important model documents. Four of the documents are closely linked to the January 1, 2010 amendments
to the Ontario Rules of Civil Procedure relating to mandatory
discovery plans and the principle of proportionality. Two other
documents relate to electronic trials.
The six model precedents are:
•
•
•
•
•

a checklist for preparing a discovery plan;
two model discovery plan templates—a long form and
a short form;
a proportionality chart to be used on a motion seeking
discovery relief;
an e-trial checklist; and
a guidance document explaining the essential elements
of an electronic trial.

Model Discovery Plans

Under new Rule 29.1 of the Rules of Civil Procedure, parties
to civil litigation matters in Ontario are required to negotiate and agree upon a discovery plan before seeking discovery
in the action. Although the Rule prescribes a list of essential
topics to be addressed in the discovery plan, there is no prescribed form for the discovery plan and many possible topics
are not identified. The EIC’s two model discovery plan templates are designed to assist in filling that gap.

The short form template addresses the bare bones of a
discovery plan as prescribed by Rule 29.1. The long form
template addresses a number of other issues that parties
may wish to negotiate as part of a discovery plan, especially
in cases with a significant e-discovery component—such as
agreed preservation steps, agreed search parameters, and
an agreed exchange protocol for electronic data, among other
things. The companion document “Checklist for Preparing a
Discovery Plan” is a helpful guide regarding issues to consider and topics to negotiate. Both the checklist and the discovery plan templates are designed to be scalable to the needs of
the specific case.
Proportionality Chart

New Rule 29.2 of the Rules of Civil Procedure contemplates
that a party moving for discovery relief will have to demonstrate that the relief sought is proportionate, taking into account the time and expense required to provide the discovery, prejudice to the party discovered, interference with the
orderly progress of the action, the availability of alternative
discovery, and the volume of documents requested to be produced.
The EIC’s model proportionality chart is designed for use
on a motion for discovery of documents, functioning in a
manner similar to a refusals and undertakings chart. The
moving party will complete columns of the chart identifying

Briefly Speaking • En Bref | June 2010

the nature of the production request, the relevance of the documents, and the proportionality factors that favour production. The responding party will then complete a responding
column, and the right hand column is for the court’s disposition
of the motion.
Electronic Trials

There is increasing interest in the option of conducting
trials electronically in Ontario, with several recent successful examples of major trials having been conducted in this
manner. The EIC’s “What is an Electronic Trial?” is a guidance document describing all key aspects of an e-trial, with
topics including, not only the logistics of an electronic trial
but also, issues of strategy and cost. The companion “E-Trial
Checklist” is a handy guide for counsel to consult when preparing for and implementing an e-trial.
Finding and Commenting on the Documents

The documents can be downloaded for free in Word or
searchable pdf format from the e-discovery page of the OBA
website:
http://www.oba.org/En/publicaffairs_en/E-Discovery/model_precedents.aspx
All of the documents have been released as public comment drafts. The EIC invites comments on the documents by
June 30, 2010. Comments may be submitted to EIC member
Michele A. Wright at mwright4@toronto.ca.

Also on the OBA website are 10 previously released EIC
model precedents and e-discovery guidance documents, including an annotated e-discovery checklist, sample memoranda to be sent to clients describing the documentary
discovery process, a discovery plan in letter format, and a
guidance document on minimizing e-discovery costs.

All of the EIC documents include detailed annotations to
The Sedona Canada Principles Addressing Electronic Discovery,
which under Rule 29.1 parties now are mandated to “consult
and have regard to” in preparing a discovery plan for an action.
About the EIC

The EIC is a joint committee established by the OBA and
The Advocates’ Society. It is composed of litigators from both
the private and public sectors, and members of the judiciary
in Ontario. Its mandate is to implement “on the ground”, within the Ontario court system and litigation bar, best practices
with respect to electronic discovery. The current members of
the EIC are Stephanie Beaudry, Duncan Boswell, Tim Buckley,
John Buhlman, Alex Cameron, Mr. Justice Colin Campbell,
Michael Fraleigh, Derek Freeman, Master Benjamin Glustein,
Brett Harrison, Peter Henderson, Kathryn Manning, Brent
McPherson, Brad Moore, Dera Nevin, David Outerbridge
(Chair), Ken Prehogan, Tom Sutton, Brendan Van Niejenhuis,
David Wires and Michele Wright.

David Outerbridge is Chair of the EIC and is Counsel in the litigation department
at Torys LLP in Toronto.

33

Law Day 2010
Happy Birthday Charter of Rights and Freedoms!

A

pril 2010 was a flurry of activity as upwards of 15,000 participants in schools, courthouses and communities province-wide took part in Law Day’s stimulating series of programs.

With more communities engaged in OBA programming
than ever before, Law Day has become more than the OBA’s
largest public legal education and promotion tool, but truly
an annual institution that, after months of enthusiastic preparation, students, teachers and members of the profession
look forward to each year.

the Ministry of the Attorney General of Ontario, ALERT
(Advancement of Legal Education and Research Trust, the
charitable branch of the OBA), the Ryerson University Legal
Centre and Corporate Crazy Catering.

Justice Gloria Epstein presents student with a sweater during prize
draw for the silent auction at the Law Day 2010 Closing Ceremonies.

Law Day 2010 was made possible through the support
of dedicated OBA members who take an active role in their
communities and engage the public on the importance of our
Charter and the legal system. Generous financial support for
Law Day was provided by the Law Foundation of Ontario,

34

Planning for Law Day 2011 begins now.

You can do it! It takes you to engage a class in your local
school. Speak to us about your interest in Law Day and what
options there are for you to engage your community. It only
takes a few hours of your time. Contact us today: 1-800-6688900 ext. 346 or by e-mail at fconte@oba.org.

June 2010 | Briefly Speaking • En Bref

(Right to left) Ontario Court of Justice Chief Justice Annemarie Bonkolo, Superior Court of Justice Chief Justice Heather
Smith and Justice Gloria Epstein of the Ontario Court of Appeal at the Law Day 2010 Opening Ceremonies.

OBA Vice President Lee Akazaki (standing) and OBA
member Audrey Ramsay guide students during the
Law Day 2010 So You Think You Can Sue program.

Briefly Speaking â&#x20AC;˘ En Bref | June 2010

Mr. Justice Russ Otter of the Ontario Court of Justice, presents the mock
trial team from Assumption College (Brantford) with the 2010 provincial
Secondary School Mock Trial championship trophy.

35

Superior Court of Justice Chief Justice Heather Smith
congratulates the winners of the Law Day 2010
photography contest.

(Right to left) Shelley Timms Law Day Committee Co-chair, Regional Senior Justice
of the Ontario Court of Justice Madam Justice Kathryn Hawke with Colleen Goulet
and Heidi Swartz of Humberside Collegiate School (Etobicoke).

Assumption College and Humberside Collegiate go head-to-head in the OBA Secondary School Mock Trial championship round.

36

June 2010 | Briefly Speaking â&#x20AC;˘ En Bref

T

he Photography Contest is a free
program that sees the OBA invite
Ontario students between the ages

of 12 and 18 to par ticipate and show their
creativity. Students are asked to create powerful
photographic

images,

which

in

some

way

represent the core principles of the Canadian Charter of Rights and Freedoms and this year’s Law Day theme.

Photo Contest Winners:
(Directly above) Representatives from St. Edmund Campion
Secondary School (Brampton) receiving their first place prizes for
the photograph ‘1982’ by the grade 12 Canadian & International
Law Class from (back, right to left) Photographer Tom
Hamilton, Deidre Newman, Chair Law Day Photography Contest,
Photographer Renata Hamilton and Photographer
Simon Tanenbaum
(Top Right) Rebecca Annibale (Mississauga) in front of her second
place winning photo, ‘Hand of a Nation’,
(Bottom Right) Suganya Thavachandran (Scarborough) in front of
her third place winning photo, ‘Candle Light Vigil’.
Briefly Speaking • En Bref | June 2010

37

JOT Across the Province

D

ozens of Ontario Court of Justice sites are now engaged in the Justice on Target
(JOT) strategy in every region across the province.

Local justice participants are forming leadership teams at
38 small - and medium-sized courts to look for any areas of
improvement in local processes and also to review the best
practices gathered to date at 11 other medium to large sites
across the province.
While there is a recognition that criminal court delay may
not be as great an issue at small and medium court sites, one
of the strengths of the strategy is the opportunity to share
best practices and learn from the work being done elsewhere.
As Local Leadership Teams are formed in these smaller
sites, they are identified as “Action Sites” on the Justice on
Target website (attorneygeneral.jus.gov.on.ca/english/jot),
where criminal court statistics dating back to 2000 are also
posted publicly. Statistics for 2009 are now posted.

Transparency and accountability are among the hallmarks
of JOT. Statistics are being made available so that the public
can follow the progress of the strategy and see the impact on
courthouses in their local communities.
The target is a 30 percent reduction in the provincial average length of time and average number of court appearances
needed to complete a criminal case by June 2012.
Justice on Target is the first ever collaborative, resultsbased approach to reducing delays in the criminal courts and
the strategy is making progress. More sites are becoming involved and the work is gaining momentum.
The Sudbury Protocol

38

Acting Director of Crown Operations, North Region, John
Luczak sees the benefits of a 2009 protocol, written by
Regional Senior Justice Richard Humphrey. It spells out some
general guidelines for case progression in the Ontario Court
of Justice in Sudbury.

Under the protocol, accused are expected to retain counsel within two weeks of the first appearance. Once Defence
Counsel is retained, the next remand is six weeks for adults
and three weeks for young people.
In the time between the two appearances, Counsel is expected to get disclosure, determine the intentions of the client and hold a resolution meeting with the Crown. Luczak admits it can be a challenge for everyone to get it accomplished
in the six-week window spelled out in the protocol. But, he
adds, “Our early resolution rate is up significantly and the
collapse rate is starting to come down.”
The protocol resembles a “Three-Appearance Standard” one of seven initiatives identified at the initial Action Sites.
Now that the Sudbury court has been engaged as a JOT Action
Site, local leaders are building on the existing protocol in addition to looking at all of the court’s local processes.

The protocol stipulates that resolution meetings called
counsel pre-trials (CPT), are mandatory in all cases and are
to be initiated by the Crown. All cases must have a confirmation hearing or final pre-trial (FPT) six weeks before the trial
or preliminary hearing date with the accused present. If the
case is not resolved, the accused is arraigned and the trial
date is confirmed.
Pleas can be entered and the matter completed there or remanded to a date for sentencing.

While justice participants in Sudbury have been engaged
in JOT since last fall, smaller courts in the region are becoming engaged now. Regional Senior Justice Humphrey, the author of the protocol, has committed to having a presence on
all Local Leadership Teams in Northwestern Region courts.
June 2010 | Briefly Speaking • En Bref

Happy Pride!
Your Pride festivities begin early this year.
Please join the Ontario Bar Association
Sexual Orientation and Gender Identity Section and
The Law Society of Upper Canada to kick off Pride Week.